A Guide To: Applying for Guardianship or Administration Orders - Fact Sheet

This document is aimed at anyone who is involved with the care or wellbeing of an adult with an impaired decision-making capacity and who has decided that a guardianship or administration order is necessary, or is not sure if an order is necessary.

This document is specific to Queensland. If you live elsewhere in Australia or anywhere outside Australia, please contact a local authority. Lawyers, the offices of members of parliament or your local government justice department or brain injury association are all good contacts.

If you do not understand the role of Queensland Civil and Administrative Tribunal (QCAT), the role of guardians and the definition of Impaired Decision-Making Capacity, please read the Fact Sheet “Introduction to Guardianship, Administration and Powers of Attorney ” at www.braininjury.org.au.

All the information in this document can be obtained from the QCAT website in clear, easy-to-read language. This document has been prepared as an overview of the process and as an easy reference.

This document has been based upon QCAT information but has not been reviewed by a member of QCAT. Where there is any doubt, please contact an information officer at QCAT on 1300 780 666.

ACRONYMS USED IN THIS DOCUMENT:

QCAT: Queensland Civil and Administrative Tribunal

OAG: Office of the Adult Guardian

WHY?

In most cases, an order for guardianship or administration is not necessary because adults with impaired decision-making capacity are adequately supported by family or friends. In some cases, however, existing informal arrangements are not enough.

The Tribunal will appoint a guardian or administrator if it is convinced that:

As you can see, the Tribunal prefers not to put a guardianship or administration order in place unless there is a compelling reason to do so.

Here are the key reasons why you as a family member or friend may consider applying for a guardianship or administration order:

Please note that the Tribunal may not consider your reasons to be adequate and may not appoint a guardian or administrator at all, or may appoint another individual or the Office of the Adult Guardian or Public Trustee Office of Queensland.

Please note also that if there is a real, immediate, current need for concern that abuse is occurring there may need to be a report to the police or the Office of the Adult Guardian as well as an application for a guardianship order. The OAG has the authority to investigate allegations of abuse or neglect, and under the Queensland Criminal Code abuse or neglect of an adult with an intellectual impairment is a criminal offence.

HOW?

The Forms

There is one form to apply for both guardianship and administration: Application for Administration/Guardianship: Appointment or Review. It is available for download from the QCAT website, along with a guide, Instructions for completing the application of the appointment of a guardian and/or administrator. If you do not have access to the Internet, or would prefer to receive the forms in hard copy, QCAT can mail you an information pack which includes the application form, the guide and information on the Guardianship and Administration Act 2000 and, therefore, the rules and processes that apply to guardianship and administration.

There must also be a separate report from a medical or related health professional testifying that the adult in question does have an impaired capacity for decision-making. This form is titled Report by medical and related health professionals and is also available both on the QCAT website and in the information pack which QCAT can mail to you. The best professional to fill out this form is a doctor, psychologist or social worker who has known the adult for the longest possible period of time, or who has played the most active role in supporting or treating the adult.

The Tribunal Hearing

When the Tribunal receives your application, it will investigate the situation, investigate acceptable alternatives to an order to meet the adult’s needs, and whether or not there is a need for the order at all.

If the matter goes to a hearing, you will be informed of the date and will be required to attend. There is no fee to attend, but you will need to cover costs such as transport or parking yourself.

Each matter will be heard by members of the tribunal, drawn from a pool of over 40 individuals who are all either lawyers and/or people with extensive professional or personal experience with people with impaired decision-making capacity. Usually a panel of three members will conduct a hearing, but some matters may be heard by a single member. The Registrar of the Tribunal is able to hear non-contentious matters.

Hearings are heard throughout Queensland and can be conducted via telephone or video conferencing, so you will not need to travel to Brisbane.

If an appointment has to be made urgently, the Tribunal can make an interim order, valid for up to 6 months, without holding a formal hearing.

Anyone who, in the Tribunal’s opinion, has a genuine and continued interest in the welfare of the adult concerned has the right to attend the hearing. At least 7 days before the hearing is scheduled, the adult concerned in the application will be notified of the hearing in a way that the Tribunal considers most appropriate having regard to their needs, e.g., by direct letter or through another party.

The Tribunal will attempt to keep the hearing as short as possible, but a more complex issue will result in a longer hearing. This can mean that a hearing will last an hour or it may last a day.

At the end of the hearing, the Tribunal members will leave the room to consider their decision. If the decision is too complex it may be reserved and you will receive notice of their decision in the post. If the members need more information, the hearing may be adjourned to a later date.

Can I appeal?

Yes, but there are time limits.

You may request a Statement of Reasons for the decisions made by the Tribunal. You must do this in writing, within 28 days of the hearing, and address your letter to the attention of the Registrar. You will receive the reasons within 28 days of the tribunal receiving your request. A copy of the reasons will be sent to each active party.

If you are concerned about the actions of a Tribunal member, write to the Tribunal President at the QCAT head office (contact details are given below).

If you wish to appeal against a decision you do not need to request a Statement of Reasons, but are encouraged to do so. The appeal must be lodged with the Supreme Court within 28 days of the hearing or 28 days of the Statement of Reasons if you requested one. It is strongly advised that you seek the assistance of a lawyer if you wish to appeal against a tribunal decision.

You may also request a review of a tribunal decision if you feel that existing information was not presented at the hearing, that new information has become available or that circumstances have changed, including the capacity of the adult or the ability of the named guardian or administrator to fill that role. A request for review must provide a reason for the review – the Tribunal may dismiss the application if they feel that it is frivolous or if there is not enough evidence to defend the application. The initial application form is also the review form.

WEBSITES AND CONTACT INFORMATION

Guardianship and Administration Tribunal, including application forms and guides to filling them out:

http://www.justice.qld.gov.au/guardian/gaat.htm
Ph: 1300 780 666
Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
GPO Box 1639
Brisbane Qld 4001

Office of the Adult Guardian:

http://www.justice.qld.gov.au/guardian/ag.htm
Ph: 1300 653 187
Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
PO Box 13554
George Street
Brisbane Qld 4003

Public Trustee Office of Queensland:

http://www.pt.qld.gov.au/index.htm
Check the website or contact the head office on (07) 3213 9288 for contact information on an office in your area.

Brain Injury Association of Queensland Inc.:

http://www.braininjury.org.au
Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
1800 673 074
PO Box 1519
Milton Qld 4064

Queensland Legislation:

Criminal Code:
http://www.austlii.edu.au/au/legis/qld/consol_act/cc189994/

Guardianship and Administration Act:
http://www.austlii.edu.au/au/legis/qld/consol_act/gaaa2000304/